A Last Will and Testament is sometimes confused with a Living Will. A Last Will and Testament is a document you use to direct the disposition of your property to your beneficiaries after you pass away. A Living Will, by contrast, is a document you use to make your wishes known regarding your medical care during your lifetime, and it becomes important if you can no longer communicate your wishes to medical professionals.
DO I NEED A LIVING WILL?
If you do not have a Living Will, the decisions made regarding types and length of treatment given to you may become a matter of dispute between family members and doctors. As a result, judicial proceedings may be needed to determine your wishes. Having a Living Will ensures that your wishes are known, even after you can no longer communicate them.
DO I NEED A LIVING WILL IF I ALREADY HAVE A HEALTH CARE PROXY?
A Living Will is different from a Health Care Proxy. It does not appoint an agent to make your decisions. It serves to express in greater detail the types of decisions you would want the agent designated in your Health Care Proxy to make. A well drafted Living Will can serve as “clear and convincing evidence” of your wishes, hopefully making it unnecessary for a medical provider to involve a judge to determine your wishes.
CAN I HAVE A COMBINATION LIVING WILL AND HEALTH CARE PROXY?
Yes, and it is arguably a good practice to do so. If the documents are combined, then the medical providers who review it will know what your wishes are and who you want to carry them out in one comprehensive document.
HOW DOES A LIVING WILL BECOME VALID?
There are no formal requirements for executing a Living Will in New York. It is suggested that to be sure the Living Will constitutes “clear and convincing evidence” of your wishes, you should put your desires in writing, and sign and date the document in the presence of two witnesses. It is also suggested that neither of the witnesses be an agent under your Health Care Proxy, if you
ARE THERE DIFFERENT TYPES OF LIVING WILLS?
Most commonly, there are two basic types of Living Wills. The first type is a narrative form, in which you set forth in general terms the nature of your wishes regarding your medical care, including your thoughts on artificial hydration and nutrition. The second type is a more tabular form, in which you initial or check which types of medical interventions you would wish to have or not have, i.e. surgery, antibiotics, or intubation. In addition, the two types can be combined for a hybrid approach.
IS THERE A PREFERRED FORM OF A LIVING WILL?
Both the narrative form and the tabular form have advantages and disadvantages. The best advice is to choose the form you feel best describes your wishes in a clear and effective manner.
HOW DO I DECIDE WHAT TO SAY IN MY LIVING WILL?
You should give serious consideration to how you would want your medical decisions made, and you should discuss your thoughts with close family, friends, and valued advisors. Valued advisors may include medical providers, members of the clergy, or legal professionals. Only through proper review and reflection will your Living Will accurately describe your wishes.
SHOULD I KEEP MY LIVING WILL IN A SAFE?
An original Living Will need not be kept in a safe, but it should be kept in a secure location. Duplicate originals or copies of your Living Will should be given to your Health Care Proxy agent, any successor agent(s), and your physician.
CAN I CHANGE MY LIVING WILL?
Yes. A Living Will can be revoked, altered, or amended at any time.
WHAT IF I NEED A LIVING WILL PREPARED?
Living Will forms may be found on line or through medical or legal professionals. It is advisable that a Living Will be drafted and executed as part of your overall estate plan, with the advice of an experienced estate planning professional.
Matthew J. Dorsey, Esq. is a Partner with O’Connell and Aronowitz, 1 Court Street, Saratoga Springs, NY. Over his 21 years of practice, he has focused in the areas of elder law, estate planning, and estate administration. Mr. Dorsey can be reached at 518-584-5205, This email address is being protected from spambots. You need JavaScript enabled to view it., and www.oalaw.com.
